Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A pilot program that could lead to a sea change in the frequently criticized New York state bar examination is set for proposal in a rare joint report by committees of the Association of the Bar of the City of New York and the New York State Bar Association. The pilot would test the idea of evaluating law school graduates’ handling of public service matters as an alternative to those sections of the current bar exam requiring students to memorize huge tracts of black letter law. Champions of what could be called the “Public Service Alternative Bar Examination” say it would eliminate historic barriers to bar admission faced by minorities and the poor, while at the same time providing a more realistic measure of attorney competence. “We’re trying to expand the bases upon which applicants are being tested,” said Lawrence M. Grosberg, chair of the City Bar’s Committee on Legal Education and Admission to the Bar. In proposing a pilot of a year, or possibly two years, he added, “We want to maintain the integrity of the bar, and the quality of the people we’re admitting. “Our fundamental motivations are the need for services to be rendered in the court system, and the notion of [increasing] public service,” said Grosberg, director of the Learning Skills Center at New York Law School. “Being evaluated for purposes of admission — and we want a rigorous evaluation — brings together these two strains.” He was careful to say that any future adoption of the alternative would be just that — “an alternative, not a substitution.” Grosberg’s counterpart at the State Bar committee — Anthony E. Davis, a partner at Moye, Giles, O’Keefe, Vermeire & Gorrell — declined to discuss the joint report prior to its official release. According to a number of observers interviewed, Davis’ reluctance may be due to politics: Davis, Grosberg and others central to the proposal are in the process of making calls to build support for the idea. Ultimately, the joint committee recommendation for a pilot program would have to win approval by the Court of Appeals and the New York State Board of Law Examiners. “The state bar exam infrastructure — the bureaucracy; call it what you will — is very entrenched,” said Thomas Maligno, director of the Public Interest Center at Touro Law Center in Huntington, Long Island. “This [joint report] is the first step in a long process that I think can lead us to change. “I don’t see this report alone being enough to make a dramatic change quickly,” said Maligno, a former chair of the State Bar’s Legal Aid Committee. “But I think it’s necessary.” The year-long work of the two Bar committees, each about 25 members strong, is based in part on two documents — old and soon-to-be-published: � A scathing, 45-page finding by the city bar in 1992 titled “Report on Admission to the Bar in New York in the 21st Century: a Blueprint for Reform.” Conclusion number one of that report declared, “The New York State bar examination, in its present form, does not adequately or effectively test minimal competence to practice law in New York.” The report discussed inequitable hurdles faced by minorities and the poor, and urged the Board of Law Examiners to be “flexible” in allowing alternatives. In the run-up to issuance of the report, the city bar held a day-long public forum for public discussion. The law board chose not to attend. Davis chaired the city bar committee that compiled the report. � A 115-page article by Kristin Booth Glen, dean of the City University of New York School of Law and a former state supreme court judge and associate justice of the Appellate Term, 1st Judicial Department. Dean Glen’s article, “Thinking Out of the Bar Exam Box: a Challenge and Proposal for Change,” is scheduled for publication this fall in the Columbia Law Review. In a draft of Glen’s article, she writes of the current bar exam: “[It] is both misguided in terms of what it purports to do, and pernicious in its effects. Yet despite the fact that lawyers are, above all, problem solvers, little has been done about the bar exam as a problem besides studies, hand-wringing and modest tinkering.” Glen stops short of accusing the bar exam bureaucracy of institutional racism, but she quotes from a number of sources on what she referred to in a footnote as “a ‘lock-in’ model of racial discrimination in legal education and the profession which can be conceptualized in anti-trust terms as legally prohibited anti-competitive conduct foreclosing competition and creating impermissible barriers to entry.” Beyond bias, Glen’s article criticized the current bar exam procedures as falling substantially short of testing the competence skills codified 10 years ago by the American Bar Association in the “MacCrate Report,” named for former ABA President Robert MacCrate. That report, compiled by a committee of attorneys, judges and law school academics, identified 10 distinct competence areas: legal analysis, research, problem-solving, oral and written communication, fact investigation, negotiation, client counseling, alternative dispute resolution, time management, and recognition resolution of ethical issues. According to Glen’s article, prospective New York lawyers who would opt for the Public Service Alternative Bar Exam, “would spend 10-12 weeks, the amount of time other applicants spend cramming for the traditional bar exam, working in the court system where they would, in addition to performing valuable public service, be rotated through a variety of assignments in which competence in all 10 of the MacCrate skills … could be evaluated by trained court personnel and law school clinical teachers.” MULTISTATE SEGMENT Evaluations of such public service, suggest the joint bar committee report and Glen’s draft article, could supplant the multistate law segment of the current exam, a segment requiring rote memorization and which accounts for half an applicant’s bar exam score. With reference to what many lawyers regard as the onerous New York bar exam, as currently given, “I have no idea why I passed,” said David W. Weschler, attorney-in-charge of the Legal Aid Society’s Volunteer Division. “I don’t know what it measured. I spent weeks sitting on my butt memorizing stuff. “Did I forget it immediately? Yes.” Weschler said the “greatest potential” of proposals for an alternative bar exam is “the long-term inculcation of doing public service, and valuing public service throughout a career.” He said the proposals might even lead to something on the order of a “a legal Peace Corps” that would benefit “both the students and the provider and client community.” “I just don’t see any downside,” Weschler added. Nonetheless, when the joint bar committee report is issued and when the great debate begins, “I still would want the people who vigorously defend the [existing] bar exam to stand up and defend their case.” Nancy O. Carpenter, executive director of the law board in Albany, N.Y., said of her agency, “We don’t agree that [the exam] relies mainly on memorization.” Carpenter has seen neither a draft of the joint bar committee report nor Glen’s pre-published article, but said, “The board will certainly welcome any suggestions.” Diane F. Bosse, chair of the law board and a partner in the Buffalo, N.Y., firm Volgenau & Bosse, has likewise not seen draft proposals for the alternative bar exam. “I’m open to listening to proposals,” she said. “I’m happy to work with any committees that have thoughts.” PAST ALTERNATIVE TO EXAM The “entrenched” bureaucracy of concern to Miligno has accepted alternatives to the New York bar exam in the past, although this would come as a surprise to many in the legal community. Veterans of World II and the Korean and Vietnam wars were completely exempt from taking the bar exam, so long as they held a diploma from an accredited law school. [Court of Appeals Rule 111-A, July 19, 1945, and 22 NYCRR 526.1, June 17, 1969.] Of concern to Glen in her draft article was the possibility that law firms would regard the Public Service Alternative Bar Exam as a lesser measure than the standard exam. “I’m not sure it would make any difference to us,” said Robert J. Kafin, chief operating partner of Proskauer Rose. “We don’t care a lot about what the bar examiners do. “We do our hiring at highly reputable law schools, and we hire people who perform well.” With reference to evaluations of a student’s work in public service law, Kafin added, “I think that’s a much better gauge of the ability to practice law than a lot of memorization.” Still, there is sure to be strong resistance — even ridicule — when the joint bar committee report and Glen’s article both are released. “But it’s just an option,” said Ellen Chapnick, dean of the Center for Public Interest Law at Columbia Law School. “Some students would take the traditional exam, some would opt for public service. “And some would say this proposal hasn’t got a snowball’s chance in hell. But a lot of people have laughed at a lot of things that have come to pass.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.